In 2020, as the Covid-19 pandemic hit and millions of us were placed under strict confinement rules, streaming became our main source of entertainment. Subscriptions to platforms exploded, as did their audience figures. Ofcom reports that time spent on platforms doubled during April 2020, and 12 million people subscribed to a service they hadn’t previously used.
Netflix’s documentary mini-series Au Royaume des Fauves (Tiger King: Murder, Mayhem and Madness) benefited greatly from this, with a total of 64 million views. This series will be remembered as the “first wave phenomenon”. Indeed, it is the 6th most-viewed English-language program produced by Netflix, its success having a significant cultural impact. It has been cited by journalists, academics and even Barack Obama. Documentary series like Au Royaume des Fauves are a sub-genre of non-fiction programs, of which Netflix has become the main buyer. Sports and true-crime are the most popular subjects in this genre, which is fast becoming Netflix’s trademark. This rise in documentary production for streaming platforms has many consequences for the industry and the public, some positive and others somewhat worrying.
Firstly, this enthusiasm is leading to a marked increase in the production of documentary films and series. Filmmakers and industry professionals are eager to highlight a growing variety of stories, and the rise of streaming platforms offers an unprecedented chance to bring these stories to the screen. Because of their vast subscriber networks, the platforms also have the power to reach a wider, more diverse audience. Indeed, this is what led David Attenborough to “defect” from the BBC to Netflix, when he lent his voice to the documentary Our Planet, aimed at raising the ecological consciousness of an unprecedented number of viewers. Indeed, the BBC, powerful and ubiquitous as it is, can’t reach 200 million people at once, or overnight. Similarly, Ava Duverney argues that Netflix fills an important gap: making films accessible to audiences living in areas without cinemas in which they could have seen them. This is what led her to choose Netflix as the distributor for her documentary The 13th.
On the other hand, platforms are accused of turning audiences away from the big screen, disrupting an already fragile ecosystem. They are also said to favor algorithms over curation to highlight works, thus using their content as merchandise, including documentaries. While documentaries, whatever their mode of distribution, are often intended to make a profit, this is far more blatant with the way they are used by the platforms. Their documentary series interest audiences as much as fiction series, as 24 heures chrono and Lost did in the early 2000s. Twenty years later, the term “binge-watching” is coined to define these new practices, exacerbated by streaming platforms.
This commercialization of documentaries intrinsically undermines one of the fundamental principles of content licensing: the distinction between editorial and commercial content. According to the Getty Images license: “Editorial images are subject to use restrictions. They may only be used in the press, editorial television programs, non-commercial websites and blog and social network posts to illustrate topics of public interest.” Similarly, Shutterstock explains this, “Editorial content cannot be used to monetize a business, but can be used for informational or educational purposes.” In my view, documentaries produced for streaming platforms fall into a gray area, not yet defined, between the strictly editorial and the strictly commercial.
What differentiates editorial and commercial licensing is exploitation: creative content is associated with the distribution of images, which makes it usable for all types of project, which is not the case for editorial content. Moreover, if you intend to use editorial content in a fictional story, all third-party rights must be cleared: personality rights and intellectual property rights (trademarks and copyright). This is also the case for all protected elements used in decor: works of art, trademarks, music, locations, etc. In recent years, rights clearance has become a global concern, and Errors & Omissions (E&O) insurance is now commonplace. An entire industry has emerged to meet these needs, with lawyers and legal advisors whose skills range from script clearance to final validation of edits.
For example, the use of an iPhone by a character in a work of fiction requires the signature of an agreement with Apple, allowing the use of their intellectual property. Before streaming, this obligation would not have concerned documentary producers. And yet, documentary filmmakers are still doing what they’ve been doing for decades: playing with form, pushing boundaries, and mixing fact and fiction to creatively tell their stories. Go back to 1922: Robert J. Flaherty was already using reconstructions in Nanook the Eskimo, offering us his romanticized vision of Inuit life rather than relying on its real-life singularities. The practice of docufiction is as old as cinema itself, and current productions simply continue a long tradition of hybridization. Such is the case with Jonas Poher Rasmussen’s Flee, which makes brilliant use of animation to get around the problem of the protagonists’ anonymity. Or take Jeff Orlowski, who mixes investigative documentary and narrative drama in Derrière nos écrans de fumée. These considerations, while academic, are still not echoed in the content licensing industry, which clings to the dichotomy between documentary and fiction in terms of intellectual property rights. Yet this is clearly no longer viable in the age of streaming, where E&O insurance is imposed by platforms on documentary producers, and rights clearance is gaining momentum.
To my knowledge, cases where rights holders have refused or demanded compensation for the non-diffamatory use of their property in documentary films are isolated. However, the increasing reach and visibility of documentary productions on streaming platforms naturally makes such claims even more likely. The scope of rights to be acquired for streaming platforms is generally as follows: all media, worldwide, perpetuity. This is far more extensive than most national TV broadcasters require. With their works under greater scrutiny, it’s understandable that producers of documentaries for streaming platforms are leaning more and more towards caution and clearing rights that, in the past, would not have been cleared.
Clearly, if the obligations imposed on fiction producers were extended to documentary producers, the current documentary landscape would be significantly altered. How could the already tight budgets of documentary producers cope with the associated licensing costs, or even the cost of clearing rights? What’s more, if authorization were required for every identifiable person, brand etc., the freedom of documentary filmmakers would be severely threatened, and this would have a dramatic impact on creativity and the freedom to tell stories.
Watching the rise of documentary on streaming platforms, I’m reminded of other turning points in the history of documentary: Michael Moore’s Palme d’Or win for Fahrenheit 9/11 in 2004, which led to record numbers of viewers flocking to cinemas to see it, or the screenwriters’ strike in 2007, which led to a sudden and sharp rise in the production of non-fiction programs. What these two events have in common, however, is only the increase in audience. Neither threatened the foundations of documentary production, as is the case today. As an archive professional, I’m very curious to see how this will evolve, and how our professional practices might change as a result.
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